Dissenting Judgments in the Privy Council

Posted by David Miles on

An article published in The Lawyer magazine in April 2014 discusses the apparent reduction in dissenting Judgments in the Supreme Court.

With his appointment as Lord Phillips' successor in 2012 in his first annual BAILII lecture, Lord Neuberger said:-

"While I am emphatically not suggesting banning dissenting Judgments, it may be that we could have fewer of them and they could be shorter".

He said having recommended more indolence "perhaps a Judge who is considering dissenting should ask himself whether (i) he feels strongly enough; (ii) if the point is important enough; (iii) it would help the developments of the law; and (iv) it would help the understanding of the law if there was a dissenting Judgment".

It is interesting to note that during an 8 month period between mid June 2013 and mid February 2014 there was not a single dissenting Judgment.

On the other hand, Lord Kerr in his Birkenhead lecture in 2012 said:-

"majority and dissenting Judgments … engage directly with each other" and continued "certainty or finality of the law is an overrated conceptCertainty of legal outcome is, in many fields, at most a temporary phenomenon".

In 2012 Lord Neuberger said "individual Judges have their own views that need to be respected: Judges are not automatons or clones – they are selected to give their views fearlessly and independently".  "… only where the topic would benefit from a judicial dialogue".

He said that dissenting Judgments should be given.

The article contains interesting analyses of dissents and solo dissents, the Judges who had the highest rate of agreement and the lowest rate of agreement including a detailed analysis of when the particular Judges sat together.

This trend seems to be reflected in Judgments in the Privy Council where dissenting Judgments are now comparatively rare.

 

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David has acted as a Privy Council agent since 1993. He has conducted many cases from most of the Privy Council jurisdictions.

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